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A group of attorneys found possible errors in the results of a DPS Toxicology Lab worker and are questioning the authenticity of results. The lab technician in question worked in the lab for about eight years.

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Attorney Brent Mayr speaks in April about possible wrongdoing in the Texas Department of Public Safety’s El Paso region crime lab. He said many blood alcohol levels were simply cut and pasted and were never actually analyzed by a forensic analyst.(Photo: MARK LAMBIE/EL PASO TIMES FILE)Buy Photo

The investigation was launched after prominent Texas defense lawyers filed a complaint with the commission that a former forensic analyst, Ana Lilia Romero, was “dry labbing” blood alcohol samples, which resulted in false blood alcohol test results in at least 22 criminal cases in 2013 and 2014.

“This incident is believed to be isolated to this batch" of cases, Mills said during the meeting. “There is no other evidence to suggest this was intentional.”

The complaint alleges that Romero did not conduct blood alcohol analysis on at least 22 cases and instead copied and pasted results without testing the sample. It also alleges that DPS crime lab supervisors failed to notice the false results.

Romero, who is no longer with the department, did not respond to requests for comment through social media, and a phone number listed for her was no longer working.

Mills acknowledged in the meeting that the investigation has found several anomalies with the results of blood testing done by Romero.

One of the main issues that led to the false results was that the instruments used to test the blood samples malfunctioned or were not working properly. The instruments run on gas, but during the testing it ran out, Mills said.

Due to the malfunction, retesting was ordered for those samples.

The samples then came back with the same data from the previous tests, the lawyers argued.

Mills said that there are records that show Romero reran the tests, but said only hard copies of the analyses were found for four cases.

He added that Romero during the retesting combined data from the February 2014 samples, which involved the malfunctioning instrument, with controlled samples used in March 2014 to reach the results.

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Attorney Brent Mayr speaks in April about possible wrongdoing in the Texas Department of Public Safety’s El Paso region crime lab. He said many blood alcohol levels were simply cut and pasted and were never actually analyzed by a forensic analyst.(Photo: MARK LAMBIE/EL PASO TIMES FILE)

Mills did confirm one of the allegations made by the defense lawyers by admitting that DPS technical supervising reviewers failed to spot the incorrect results in 2014.

The results in question were sent in 2014 to a technical reviewer in Midland, who is also no longer with the department, Mills said.

Mills said the reviewer saw that the alcohol concentration was lower on the new results from the first results, which would be normal.

The reason the results weren’t found to be false at that time was due to the reviewer not noticing that the samples had the same area counts, which would indicate the results were not accurate.

“The cases were administratively reviewed on 3/21/2014,” Mills said. “The identical area counts were not noted when the review was done. .. If they would have seen the area counts were exactly the same — which I think we all could agree is probably not possible — we should have identified that back in 2014, but that was not done.”

Defense lawyers claim that Romero did not retest the samples and just copied and pasted the same results.

Mills said in the meeting that the department’s investigation has shown that Romero did rerun the test, but a problem occurred when she recorded the results.

The investigation is still looking into what exactly happened to cause the false data being reported, Mills said.

He added that the department reviewed 29 unrelated blood alcohol tests conducted by Romero and found none of the results to be falsified.

Mills said that they don’t believe Romero intentionally falsified the results, but the investigation is ongoing.

The early conclusion reached by DPS that Romero did not intentionally falsify the results brings into question how the investigation is being conducted, Mayr said.

“I am greatly concerned about the fact that they’re still trying to determine what Ana Romero did, but are already concluding that what she did was not intentional,” Mayr said. “We absolutely believe she intentionally faked those results.”

Mayr and the other attorneys are requesting that an independent investigation be conducted on Romero's actions and how DPS officials handled the situation.

He also pointed out that Romero had been caught in 2013 allegedly falsifying drug weights.

According to Romero’s employment records obtained by the El Paso Times, she committed errors by “copying and pasting” results on drug weight tests.

Mills said that while the department found the results of misreported drug weights, they were not connected to the blood alcohol tests.

Since the blood alcohol samples aren’t weighed, DPS officials did not check Romero’s work on any blood alcohol samples.

Mills said that the falsified samples should not be retested now since they are four years old and it is unknown what condition the samples have been kept in over the years.

The results in the testing by Romero are now considered invalid, Mills said.

Mayr said that while he is happy DPS officials have invalidated the sample, the bigger issue is that the falsified results went unnoticed for years.

“I am pleased to know that DPS is admitting that those tests were invalid and that they have chosen to not support those findings,” Mayr said. “However, I am still greatly concerned about the fact that, as DPS acknowledged, their reviewers failed to catch this in 2014. They failed to acknowledge they did not catch this up until earlier this year when we brought it to their attention.”

With the false samples being ruled invalid, Mayr said, the convictions of at least 22 driving while intoxicated cases could now be thrown out.

“That is up to the DA’s office to decide what to do with those cases,” Mayr said. “I believe the appropriate thing to do is to throw out those convictions, but that is up to the DA’s office."

Mills said that officials with the district attorney's office have already been notified that the results have been ruled invalid.

“We have communicated with the DA that it is responsible for those cases that we can’t support those original reports and it is not fruitful to go ahead and retest those blood tubes at this time,” Mills said.

El Paso County District Attorney Jaime Esparza said he is waiting for a decision by the commission.

“The work of the Forensic Commission is important,” Esparza said in a statement. “I am confident the commission will completely review the incident and I am in total support (of) the process.”

Esparza told the El Paso Times in April that blood alcohol samples are not the only things used to convict suspected drunk drivers.

The other items used to convict a person in a drunk driving case include traffic infraction or collision leading up to the person’s detention, their speech, odor, and their admissions of drinking, Esparza said.

Mills said no policies were in place in 2014 to account for instrument malfunctions. But since then, he said, policies have been established and he asked the commission for recommendations on other procedures to use.

Some of the changes include using more efficient instruments and "continuous improvements" to evaluating blood alcohol testing methods, Mills said during the meeting.

The lack of policies in 2014 is not an excuse for the falsified results, Mayr said.

“The reason they had asked that the initial February test be thrown out was because the gas ran out and they did not have a policy to address that,” Mayr said. “But you don’t need a policy in effect to know whether it is good or bad science. That is bad when your instrument runs out of critical gas it needs to properly test it. They did the right thing when they didn’t use the February test, but what Ana Romero decided to do was fake the results of the March test, which created a much greater problem.”

The commission did not make a ruling on the complaint filed at the July 20 meeting. Mayr said a decision could be made when the commission meets again in October.